State of Uttaranchal
& Ors. Vs. Kharak Singh [2008] INSC 1367 (13 August 2008)
Judgment
The Judgment of the
Court was delivered by P. SATHASIVAM, J.
1.
This
appeal is directed against the judgment and order dated 15.5.2006 of the High
Court of Uttaranchal at Nainital in Writ Petition No. 606 of 2003 (SS) whereby
the writ petition filed by the respondent herein was allowed quashing the
orders dated 5.3.1986 passed by the Divisional Forest Officer, Haldwani Forest
Division, Dist. Nainital and dated 27.4.1991 passed by the Conservator of
Forest, Western Circle, Nainital dismissing the respondent from service.
2.
The
brief facts are stated as under:
The respondent herein
was a temporary Forest Guard and was posted in Nandhaur Range of Haldwani
Forest Division, Nainital. In 1984, when he was incharge of Asani Beat in
Nandhor Range of Haldwani Forest Division, illegal felling of 11 Sal trees and
24 Kokat species took place in Asani Beat Nos. 1, 3 and 5 which were allotted
to the U.P. Forest Corporation for felling of marked dead, dying and diseased
trees. In the diary maintained by the Department, during the months of March
and April, 1984, the respondent visited the above compartments regularly and
certified that there was no illicit felling of trees in his beat during the
period under reporting.
On 23.5.1984,
sub-Divisional Forest Officer, Nandhaur seized 27 logs of Sal bearing transit
hammer mark of Dolpokhra Transit Barrier in Haldwani.
Having seen the
hammer marks on the seized logs, on 24.5.1984 the SDO directed Range Officer to
trace the illicit felling of trees in and around Dolpokhra. On being questioned
by the SDO, the respondent could not satisfy the SDO. Having confirmed the
involvement of the respondent in the illicit felling of trees, the Division
Forest Officer, Haldwani Forest Division by letter No. 40/25 dated 1.6.1984,
suspended the respondent. On 19.12.1984, the Division Forest Officer served the
charge sheet upon the respondent and the respondent gave his reply on 9.4.1985.
Thereafter, enquiry was entrusted to Sri P.V. Lohni, who submitted his report
on 16.11.1985 to the Divisional Forest Officer, Haldwani. On the basis of
theinquiry report, the Divisional Forest Officer vide order dated 6.3.1986
dismissed the respondent herein. Feeling aggrieved, the respondent preferred an
appeal before the Conservator of Forest, Western Circle, Nainital, Appellant
No.2 herein and the same was dismissed vide order dated 27.4.1981. Questioning
the said order, the respondent herein preferred writ petition before the High
Court praying for issuing a writ of certiorari.
The High Court vide
order dated 15.5.2005 issued a writ of certiorari quashing the orders dated 5.3.1986
passed by the Divisional Forest Officer, Haldwani as well as order dated
27.4.1991 passed by the Conservator of Forest, Western Circle, Nainital. The
High Court has directed the appellants to reinstate the respondent in service
with all consequential benefits.
Aggrieved by the said
order, this appeal by special leave has been preferred by the State of
Uttaranchal, Conservator of Forest, Western Circle, Nainital and Divisional
Forest Officer, Haldwani Forest Division, Nainital.
3.
We
heard Mr. S.S. Shamshy, learned counsel, for the appellants and Mr. P. Vinay
Kumar, learned counsel, for the respondent.
4.
Learned
counsel appearing for the appellants mainly contended that the High Court
committed an error in quashing the order of dismissal of the respondent on the
ground that the enquiry was not properly conducted and was not free from bias.
On the other hand, according to him, the enquiry was conducted according to
rules and the punishment was awarded based on the gravity of charges proved.
Per contra, learned counsel for the respondent supported the impugned order of
the High Court by pointing out the infirmities in conducting enquiry.
5.
Before
analyzing the correctness of the above submissions, it is useful to refer
various principles laid down by this Court as to how enquiry is to be conducted
and which procedures are to be followed.
6.
The
following observations and principles laid down by this Court in Associated
Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652 are relevant:
"... ... In the
present case, the first serious infirmity from which the enquiry suffers
proceeds from the fact that the three enquiry officers claimed that they
themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah
contends that if the Manager and the other officers saw Malak Ram committing
the act of misconduct, that itself would not disqualify them from holding the
domestic enquiry. We are not prepared to accept this argument. If an officer
himself sees the misconduct of a workman, it is desirable that the enquiry
should be left to be held by some other person who does not claim to be an
eye-witness of the impugned incident. As we have repeatedly emphasised,
domestic enquiries must be conducted honestly and bona fide with a view to
determine whether the charge framed against a particular employee is proved or
not, and so, care must be taken to see that these enquiries do not become empty
formalities. If an officer claims that he had himself seen the misconduct
alleged against an employee, in fairness steps should be taken to see that the
task of holding an enquiry is assigned to some other officer. How the knowledge
claimed by the enquiry officer can vitiate the entire proceedings of the
enquiry is illustrated by the present enquiry itself. ... .....
..... ..... It is
necessary to emphasise that in domestic enquiries, the employer should take
steps first to lead evidence against the workman charged, give an opportunity
to the workman to cross-examine the said evidence and then should the workman
be asked whether he wants to give any explanation about the evidence led
against him. It seems to us that it is not fair in domestic enquiries against
industrial employees that at the very commencement of the enquiry, the employee
should be closely cross-examined even before any other evidence is led against
him. In dealing with domestic enquiries held in such industrial matters, we
cannot overlook the fact that in a large majority of cases, employees are
likely to be ignorant, and so, it is necessary not to expose them to the risk
of cross-examination in the manner adopted in the present enquiry proceedings.
Therefore, we are
satisfied that Mr. Sule is right in contending that the course adopted in the
present enquiry proceedings by which Malak Ram was elaborately cross-examined
at the outset constitutes another infirmity in this enquiry."
7.
In
Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others,
(1993) 4 SCC 727, it was held:
"Where the
enquiry officer is other than the disciplinary authority, the disciplinary
proceedings break into two stages. The first stage ends when the disciplinary
authority arrives at its conclusions on the basis of the evidence, enquiry
officer's report and the delinquent employee's reply to it. The second
stagebegins when the disciplinary authority decides to impose penalty on the
basis of its conclusions. If the disciplinary authority decides to drop the
disciplinary proceedings, the second stage is not even reached.
While the right to
represent against the findings in the report is part of the reasonable
opportunity available during the first stage of the inquiry viz., before the
disciplinary authority takes into consideration the findings in the report, the
right to show cause against the penalty proposed belongs to the second stage
when the disciplinary authority has considered the findings in the report and
has come to the conclusion with regard to the guilt of the employee and
proposes to award penalty on the basis of its conclusions. The first right is
the right to prove innocence. The second right is to plead for either no
penalty or a lesser penalty although the conclusion regarding the guilt is
accepted. It is the second right exercisable at the second stage which was
taken away by the Forty-second Amendment. The second stage consists of the
issuance of the notice to show cause against the proposed penalty and of
considering the reply to the notice and deciding upon the penalty. What is
dispensed with is the opportunity of making representation on the penalty
proposed and not of opportunity of making representation on the report of the
enquiry officer. The latter right was always there. But before the Forty-second
Amendment of the Constitution, the point of time at which it was to be
exercised had stood deferred till the second stage viz., the stage of
considering the penalty. Till that time, the conclusions that the disciplinary
authority might have arrived at both with regard to the guilt of the employee
and the penalty to be imposed were only tentative. All that has happened after
the Forty-second Amendment of the Constitution is to advance the point of time
at which the representation of the employee against the enquiry officer's
report would be considered. Now, the disciplinary authority has to consider the
representation of the employee against the report before it arrives at its
conclusion with regard to his guilt or innocence in respect of the charges.
Article 311(2) says
that the employee shall be given a "reasonable opportunity of being heard
in respect of the charges against him". The findings on the charges given
by a third person like the enquiry officer, particularly when they are not
borne out by the evidence or are arrived at by overlooking the evidence or
misconstruing it, could themselves constitute new unwarranted imputations. The
proviso to Article 311(2) in effect accepts two successive stages of differing
scope. Since the penalty is to be proposed after the inquiry, which inquiry in
effect is to be carried out by the disciplinary authority (the enquiry officer
being only his delegate appointed to hold the inquiry and to assist him), the
employee's reply to the enquiry officer's report and consideration of such
reply by the disciplinary authority also constitute an integral part of such
inquiry.
Hence, when the
enquiry officer is not the disciplinary authority, the delinquent employee has
a right to receive a copy of the enquiry officer's report before the
disciplinary authority arrives at its conclusions with regard to the guilt or
innocence of the employee with regard to the charges levelled against him. That
right is a part of the employee's right to defend himself against the charges
levelled against him. A denial of the enquiry officer's report before the
disciplinary authority takes its decision on the charges, is a denial of
reasonable opportunity to the employee to prove his innocence and is a breach
of the principles of natural justice.
8.
In
Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another,
(1999) 2 SCC 21, it was held:
"34. But in
cases where the termination is preceded by an enquiry and evidence is received
and findings as to misconduct of a definitive nature are arrived at behind the
back of the officer and where on the basis of such a report, the termination order
is issued, such an order will be violative of the principles of natural justice
inasmuch as the purpose of the enquiry is to find out the truth of the
allegations with a view to punish him and not merely to gather evidence for a
future regular departmental enquiry. In such cases, the termination is to be
treated as based or founded upon misconduct and will be punitive. These are
obviously not cases where the employer feels that there is a mere cloud against
the employee's conduct but are cases where the employer has virtually accepted
the definitive and clear findings of the enquiry officer, which are all arrived
at behind the back of the employee -- even though such acceptance of findings
is not recorded in the order of termination. That is why the misconduct is the
foundation and not merely the motive in such cases."
9.
In
Syndicate Bank and Others vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150, the
following conclusion is relevant:
"18. In our
view, non-supply of documents on which the enquiry officer does not rely during
the course of enquiry does not create any prejudice to the delinquent. It is
only those documents, which are relied upon by the enquiry officer to arrive at
his conclusion, the non-supply of which would cause prejudice, being violative
of principles of natural justice. Even then, the non- supply of those documents
prejudice the case of the delinquent officer must be established by the
delinquent officer. It is well- settled law that the doctrine of principles of
natural justice are not embodied rules. It cannot be put in a straitjacket
formula. It depends upon the facts and circumstances of each case. To sustain
the allegation of violation of principles of natural justice, one must
establish that prejudice has been caused to him for non-observance of
principles of natural justice."
10.
In
regard to the question whether an enquiry officer can indicate the proposed
punishment in his report, this Court, in a series of decisions has pointed out
that it is for the punishing/disciplinary authority to impose appropriate
punishment and enquiry officer has no role in awarding punishment. It is useful
to refer to the decision of this Court in A.N.D'Silva vs. Union of India,
(1962) Supp 1 SCR 968 wherein it was held:
"In the
communication addressed by the Enquiry Officer the punishment proposed to be
imposed upon the appellant if he was found guilty of the charges could not
properly be set out.
The question of
imposing punishment can only arise after enquiry is made and the report of the
Enquiry Officer is received.
It is for the
punishing authority to propose the punishment and not for the enquiring
authority."
11.
From
the above decisions, the following principles would emerge:
i) The enquiries must
be conducted bona fide and care must be taken to see that the enquiries do not
become empty formalities.
ii) If an officer is
a witness to any of the incidents which is the subject matter of the enquiry or
if the enquiry was initiated on a report of an officer, then in all fairness he
should not be the Enquiry Officer. If the said position becomes known after the
appointment of the Enquiry Officer, during the enquiry, steps should be taken
to see that the task of holding an enquiry is assigned to some other officer.
iii) In an enquiry,
the employer/department should take steps first to lead evidence against the
workman/delinquent charged, give an opportunity to him to cross-examine the
witnesses of the employer. Only thereafter, the workman/delinquent be asked
whether he wants to lead any evidence and asked to give any explanation about
the evidence led against him.
iv) On receipt of the
enquiry report, before proceeding further, it is incumbent on the part of the
disciplinary/punishing authority to supply a copy of the enquiry report and all
connected materials relied on by the enquiry officer to enable him to offer his
views, if any.
12.
Now,
let us consider the merits of the case on hand and whether the High Court is
justified in quashing the orders passed by the disciplinary authority as well
as the appellate authority dismissing the respondent from service. In the
proceedings Letter No. 1644/8 Haldwani dated December 19, 1984 (Annexure-P1)
after furnishing certain factual details, the following charges have been
levelled against the delinquent:
"Charge 1: You
have concealed the illegal cutting which took place in Asani Block from your
higher officials deliberately which caused huge financial loss to the
department.
Charge 2: You have not
obeyed the orders of your higher officials and you have traveled leaving your
working without any reason in arbitrary manner.
Charge 3: You have
shown negligence in discharging your duties."
Though a detailed
explanation has been submitted controverting the above charges, no enquiry in
terms of the above-mentioned principles was ever conducted. On the other hand,
one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nadhor acting as an
enquiryofficer after putting certain questions and securing answers submitted a
report on 16.11.1985. No witnesses were examined.
Apparently there was
not even a presenting officer. A perusal of the report shows that the enquiry
officer himself inspected the areas in the forest and after taking note of
certain alleged deficiencies secured some answers from the delinquent by
putting some questions. It is clear that the Enquiry Officer himself has acted
on the Investigator, Prosecutor and Judge. Such a procedure is opposed to
principles of natural justice and has been frowned upon by this Court.
13.
Another
infirmity in the report of the enquiry officer is that he concluded the enquiry
holding that all the charges have been proved and he recommended for dismissal
of the delinquent from service.
The last paragraph of
his report dated 16.11.1985 reads as under:- "During the course of above
inquiry, such facts have come into light from which it is proved that the
employee who has doubtful character and does not obey the order, does not have
the right to continue in the government service and it is recommended to
dismiss him from the service with immediate effect."
(emphasis supplied)
Though there is no specific bar in offering views by the enquiry officer, in
the case on hand, the enquiry officer exceeded his limit by saying that the
officer has no right to continue in the government service and he has to be
dismissed from service with immediate effect. As pointed out above, awarding
appropriate punishment is the exclusive jurisdiction of the punishing
/disciplinary authority and it depends upon the nature and gravity of the
proved charge/charges and other attended circumstances. It is clear from the
materials, the officer, who inspected and noted the shortfall of trees, himself
conducted the enquiry, arrived at a conclusion holding the charges proved and
also strongly recommended severe punishment of dismissal from service. The
entire action and the course adopted by the enquiry officer cannot be accepted
and is contrary to the well- known principles enunciated by this Court.
14.
A
reading of the enquiry report also shows that the respondent herein was not
furnished with the required documents.
The department's
witnesses were not examined in his presence.
Though the respondent
who was the writ petitioner specifically stated so in the affidavit before the
High Court in the writ proceedings, thoseaverments were specifically
controverted in the reply affidavit filed by the department. Mere denial for
the sake of denial is not an answer to the specific allegations made in the
affidavit. Likewise, there is no evidence to show that after submission of the
report by the enquiry officer to the disciplinary authority, the respondent
herein was furnished with the copy of the said report along with all the relied
upon documents. When all these infirmities were specifically pleaded and
brought to the notice of the appellate authority (i.e. Forest Conservator), he
rejected the same but has not pointed the relevant materials from the records
of the enquiry officer and disciplinary authority to support his decision.
Hence, the appellate authority has also committed an error in dismissing the
appeal of the respondent.
15.
After
taking note of all the infirmities and in the light of the various principles
enunciated by this Court, the High Court has rightly interfered and quashed the
orders dated 05.03.1986 passed by the Divisional Forest Officer, Haldwani as
well as order dated 27.04.1991 passed by the Conservator of Forest, Western
Circle, Nainital.
16.
In
view of the above discussion and conclusion, the appeal fails and the same is
dismissed. However, there will be no order as to costs.
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